Jharkhand High Court

Against The Judgment Of Conviction ... vs Indar Oraon on 6 January, 2026

Author:
Sujit Narayan Prasad

Bench:
Sujit Narayan Prasad

2026:JHHC:140-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Death Reference No.01 of 2025

[Against the Judgment of conviction dated 09.01.2025 and Order
of sentence dated 10.01.2025 passed by learned Additional and
Sessions Judge-I-cum-Special Judge (POCSO Act), Lohardaga, in
Special POCSO Case No.09/2023]

The State of Jharkhand ... ... Appellants
Versus
Indar Oraon, son of Laxman Oraon, aged about 25 years,
resident of Village-Areya, P.O. Kisko, P.S. Bagru, District-
Lohardaga, Jharkhand. ... ... Respondent
With
Criminal Appeal (DB) No.847 of 2025
------
Indar Oraon, son of Laxman Oraon, aged about 25 years,
resident of Village-Areya, P.O. Kisko, P.S. Bagru, District-
Lohardaga, Jharkhand. ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent

PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
[Death Reference No.01/2025]
For the Appellant : Mr. Pankaj Kumar, P.P.
: Ms. Sharda Kumari, A.C. to P.P.
For the Respondent : Mr. Mahesh Tewari, Advocate

[Cr. Appeal (DB) No.847/2025]
For the Appellant : Mr. Kumar Vaibhav, Amicus Curiae
For the Respondent : Mr. Pankaj Kumar, P.P.
: Ms. Sharda Kumari, A.C. to P.P.
.....

C.A.V. on 05.12.2025 Pronounced on 06/01/2026

Per Sujit Narayan Prasad, J.

1. Heard learned counsel for the appellant, facing the

death sentence, and learned counsel for the State, in the

death reference.
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2. As this death reference and the instant appeal arise out

of the common Judgment of conviction and Order of

sentence, they were heard together and are being disposed of

by this common Judgment.

3. This death reference and the connected Criminal Appeal

arise out of the impugned Judgment of conviction dated

09.01.2025 and Order of sentence dated 10.01.2025 passed

by learned Additional and Sessions Judge-I-cum-Special

Judge (POCSO Act), Lohardaga, in Special POCSO Case

No.09/2023 whereby, the sole appellant Indar Oraon has

been found guilty and convicted for the offences under

Sections 302
of the Indian Penal Code and
Section 6
of the

POCSO Act.

Upon hearing on the point of sentence, the appellant

Indar Oraon has been sentenced to the capital punishment of

death, for the offence under
Section 302
of the Indian Penal

Code, directing him to be hanged by neck till his death. He

has further been sentenced to R.I. of Life imprisonment

(remainder of natural life) and fine of Rs. 25,000/- (Twenty

Five Thousand) for offence
u/s 6
POCSO Act. In the event of

default of payment of fine, he shall undergo S.I. of One

month.

Aggrieved by the said Judgment of Conviction and Order

of sentence, the appellant has preferred the present appeal,

whereas the death reference is made by the learned Trial
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Court for confirmation of the death sentence imposed upon

the sole appellant, namely Indar Oraon.

Factual Matrix

4. This Court, before proceeding to examine the legality

and propriety of the judgment of conviction and order of

sentence, deems it fit and proper to refer the background of

institution of prosecution case. The prosecution story in brief

as per the allegation made in the First Information Report

reads hereunder as :-

The case of the prosecution is that on 24.12.2022 at

3.00 O'clock the informant alongwith her younger daughter

(victim/deceased aged about 5 years) visited towards roof of

Anganbari for getting the paddy crop parched.

In the meanwhile, her daughter rushed out from there

and started playing with other children. Accused Indar Oraon

aged about 25 years visited there and offered 5 rupees to

each children and on the other hand her daughter was

offered 50 rupees by the accused Indar Oraon.

Accused Indar Oraon wandered alongwith her daughter.

At 4.35 O'clock when she returned home, her daughter was

found to be missing. She inquired whereabout of her

daughter from Indar Oraon accused.

She on suspicion apprehended accused but accused

Indar Oraon strove hard to stifle her in the court yard of

Fuldeo.
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In the meanwhile, Sukhmaniya Oraon and Heeramuni

Oraon rushed there and informed her that her daughter was

lying dead. Then Indar Oraon started fleeing from the spot

but he was apprehended by the people who divulged that he

attempted to ravish the victim/deceased behind the house of

Tewasi Oraon during which victim/deceased squealed and in

the said course he stifled her neck causing her death.

It has been indicted that Indar Oraon killed the

victim/deceased when he attempted to ravish her. It has

been also alleged that Indar Oraon was having criminal

history of killing her grand-mother and in this connection

earlier a case was instituted in Bagru Police Station.

Thereafter the matter was reported to the Bagru Police

Station for institution of F.I.R.

On the written report of informant, this case was

instituted vide Bagru P.S. Case No. 33/2022 dated

24.12.2022 for the offences
u/s 302
,
376(2)(f)
of I.P.C. and

Section 6
POCSO Act.

5. After investigation Police submitted charge-sheet

against the accused /appellant for the offences U/s 302,

376(2)(f)
I.P.C
. and
Section 6
POCSO Act.

6. On 23.02.2023, cognizance was taken against

accused/appellant for the offences U/s 302, 376(2)(f)
IPC
and

Section 6
POCSO Act.
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7. Accordingly, charges U/s 376(2)(f), 302
IPC
and
Section
POCSO Act were framed against the appellant which was

read and explained to him to which he pleaded not guilty and

claimed to be tried.

8. In order to establish charges levelled against accused

person, prosecution examined altogether 17 witnesses which

are as follows:

PW-1 Mehrani Orain

PW-2 Sukhmaniya Oraon

PW-3 Rajmuni Oraon

PW-4 Mrs. X (Informant)

PW-5 Bipasa Oraon

PW-6 Khushboo Kumari

PW-7 Bablu Oraon

PW-8 Sudhir Oraon

PW-9 Priti Oraon

PW-10 Sunil Oraon

PW-11 Biyas Sahu

PW-12 Sulendra Sahu

PW-13 Dr. Anand Kumar

PW-14 Dr. Ajay Kumar Bhagat

PW-15 Kiran Pandit

PW-16 Vishwajit Kumar Singh (I.O.)

PW-17 Pankaj Kumar Sharma (I.O.)
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9. The Defence has not examined any witness in support

of his case.

10. The trial Court, after recording the evidence of

witnesses, examination-in-chief and cross-examination,

recorded the statement of the accused/appellant found the

charges levelled against the appellant proved beyond all

reasonable doubts.

11. Accordingly, the appellant had been found guilty and

convicted for the offence punishable under
Section 302
of the

Indian Penal Code and
Section 6
of the POCSO Act.

12. The aforesaid order of conviction and sentence is

subject matter of instant appeal.

Submission of the learned counsel for the appellant:

13. Learned counsel for the appellant has submitted that

the impugned Judgment of conviction and Order of sentence

passed by the trial court cannot be sustained in the eyes of

law.

14. The following grounds have been taken by the learned

counsel for the appellant in assailing the impugned judgment

of conviction: -

(i) The impugned judgment of conviction and

sentence has been passed mechanically and

without appreciating the evidence available on

record and without taking into consideration the
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evidences in its right perspective, thereby arriving

at erroneous conclusion.

(ii) The impugned judgment is not sustainable either

on facts or in the eyes of law and is fit to be set

aside as the same has been passed on conjectures,

surmises and suspicion.

(iii) The learned Trial Court has failed to appreciate the

fact that the version of PW-1-Mehrani Orain and

PW-2-Sukhmaniya Oraon did not inculpate the

Appellant with certainty and did not prove the case

of the prosecution beyond reasonable doubt.

(iv) The learned Trial Court has failed to appreciate

that PW-3- Rajmuni Oraon was merely a witness

who had seen the dead body and she is not the

witness of alleged occurrence. Further, the PW-3's

version of seizure also casts a serious doubt on the

factum of seizure.

(v) The learned Trial Court has failed to appreciate

that there was improvement in the deposition of

the PW-4- informant in the trial as compared to

her version in the FIR thereby casting a serious

doubt on her testimony.

(vi) Learned Trial Court has failed to appreciate that

the evidence of PW-5 Bipasa Oraon, PW-6

Khushboo Kumari and PW-9 Priti Oraon were
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merely of the nature of 'last seen' and did not

further the case of the prosecution as regard the

alleged occurrence. Further, the learned Trial

Court did not record proper satisfaction that these

witnesses being child witnesses were competent to

understand the facts and circumstances of the

matter.

(vii) The learned Trial Court has failed to appreciate

that the purported confession made by the

Appellant before the PW-7 Bablu Oraon was made

in 'Sadri' language which the witness has

expressed inability to understand in his cross-

examination and hence the entire prosecution

version of Appellant's extra-judicial confession

stood demolished.

(viii) The learned Trial Court has failed to appreciate

that the PW-8 has specifically stated in his cross-

examination that he had not witness the alleged

occurrence as he was at his home.

(ix) The learned Trial Court has failed to appreciate

that the evidence of the PW-10, 11 and 12 was in

the nature of hearsay and hence did not further

the case of the prosecution.

(x) The learned Trial Court has failed to appreciate

that the prosecution had failed to examine Prof.
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Dr. Chandrashekhar Prasad under whose

supervision the post-mortem of the deceased was

conducted, as specifically deposed by PW-13 in his

cross-examination.

(xi) The learned Trial Court has failed to appreciate

that the PW-15 Kiran Pandit in her cross-

examination has specifically stated that the

inquest report does not specifically state that the

dead body was found from near the house of

Tewasi Oraon.

(xii) The learned Trial Court has failed to appreciate the

fact that there is no eye witness to the alleged

occurrence and that the prosecution failed to

examine several material witnesses in order to

unearth the truth of the matter.

(xiii) The learned Trial Court has failed to take into

consideration that the prosecution was unable to

establish the time of death of the deceased with

precision thereby casting a serious doubt on the

entire case of the prosecution.

(xiv) The learned Trial Court has failed to take into

consideration that the forensic report completely

negated the involvement of the Appellant in the

alleged crime since there was no DNA match of the

Appellant with any of the seized materials.
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(xv) The learned Trial Court has failed to take into

consideration that the case was of circumstantial

evidence however none of the chain of

circumstances were complete so as to give rise to

an irrefutable inference that the alleged crime has

been committed by the Appellant.

(xvi) The learned Trial Court has failed to take into

consideration that the last-seen version put forth

by the prosecution was extremely faint and could

not be construed as incriminating material against

the Appellant.

(xvii) The learned Trial Court has failed to take into

consideration that the medical and forensic

evidence did not corroborate the prosecution case.

(xviii) The learned Trial Court has failed to take into

consideration that the extra-judicial confession of

the Appellant was not at all corroborated by any

other evidence led by the prosecution.

(xix) The learned Trial Court has miserably failed to

take into consideration that there are several

inconsistencies, improvement and contradictions

in the evidence of prosecution witnesses, which

cast a serious doubt on the entire case of the

prosecution.
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(xx) The learned Trial Court has failed to properly

appreciate the statement of the Appellants

recorded u/s 351 of the BNSS.

(xxi) The prosecution has not been able to prove the

charges leveled against the accused persons

beyond shadow of all reasonable doubt.

(xxii) The prosecution has failed to establish any motive

of the Appellant for committing the alleged offence.

(xxiii) The learned Trial Court has failed to take into

consideration that the entire investigation was

conducted in hot-haste by the police.

(xxiv) The learned Trial Court has failed to take into

consideration the principle that if offence is proved

by circumstantial evidence ordinarily death penalty

should not be awarded and no 'special reason' has

been recorded by the learned court below which

makes awarding of death penalty imperative.

(xxv) The learned Trial Court has failed to apply and

balance aggravating circumstances with mitigating

circumstances while awarding death penalty to the

Appellant and has also failed to take into

consideration that the Appellant is a young person.

(xxvi) The learned Trial Court has failed to take into

consideration that even if it is held that the

prosecution has been able to prove its case beyond
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reasonable doubt, still the instant case is not

'rarest of rare case warranting imposition of death

penalty.

(xxvii) The learned Trial Court has miserably failed to

record a finding that the Appellant was beyond any

reforms and that the death penalty was the only

option in the facts and circumstances of the case

and that alternative option of a lesser punishment

is unquestionably foreclosed.

(xxviii) Learned counsel, accordingly, submitted that there

being only circumstantial evidence against the

accused and there being no eyewitness to the

occurrence of rape, murder or concealing the dead

body, it was a fit case, in which, the appellant

ought to have been given at least the benefits of

doubt.

15. The learned counsel for the appellant, based upon the

aforesaid grounds, has submitted that, therefore, it is a case

where the judgment of conviction and order of sentence is fit

to be interfered with.

Submission of the learned counsel/P.P for the state:

16. Per contra, Mr. Pankaj Kumar, learned Public

Prosecutor appearing for the State, has submitted by taking

the following grounds in defending the impugned judgment:
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(i) Learned counsel for the State submitted that the

case in hand relates to brutal murder of the victim

girl after commission of rape upon her by the

accused in extremely brutal, gruesome and

diabolical manner, and the case comes within the

category of rarest of rare cases, and as such it is a

fit case in which the death sentence awarded to

the accused by the Trial Court below be confirmed,

irrespective of his age, family background or lack

of criminal antecedents, which cannot be

considered as mitigating circumstances

(ii) Learned State counsel while supporting the death

reference, has placed reliance upon the decisions

of the Hon'ble Apex Court in
Bachan Singh Vs.

State of Punjab
, reported in (1980) 2 SCC 684

and Machi Singh & Ors. Vs. State of Punjab,

reported in (1983) 3 SCC 470, giving the

necessary guidelines for awarding the death

sentence, and submitted that in Machi Singh's

case (supra), it has been held that when the victim

of murder is an innocent child who could not have

or has not provided even an excuse, much less a

provocation, for murder, the case comes within the

rarest of the rare category, and it is a fit case for

imposing the death sentence.
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(iii) Learned counsel has further placed reliance upon

the decision of the Hon'ble Apex Court in
Bantu

Vs. State of U.P.
, reported in (2008) 11 SCC 113,

which related to the rape and murder of a child,

aged about five years, wherein the Apex Court held

that the case fell within the category of rarest of

rare cases, affirming the death sentence.

(iv) Similarly, in
Shivaji Vs. State of Maharashtra
,

reported in (2008) 15 SCC 269, which related to

rape and murder of a child aged about nine years,

it was held that the plea that in cases of

circumstantial evidence, the death sentence

should not be awarded, is without any logic. This

case was also found to be falling within the

category of rarest of rare cases, and the death

sentence to the accused was affirmed.

(v) Again in
Purushottam Dashrath Borate Vs. State

of Maharashtra
, reported in AIR 2015 SC 2170,

the Supreme Court, in a case related to gang rape

and murder of a married woman, re-iterated the

need of imposing just punishment upon the

accused, holding that the undue sympathy shown

to the accused shall do more harm. It was also

held that the age of the accused or his family

background or lack of criminal antecedents,
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cannot alone be considered as mitigating

circumstances. The death sentence was affirmed

by the Hon'ble Apex Court, upon the accused in

spite of his young age.

17. Learned counsel for the State, based upon the aforesaid

pronouncements, has submitted that the impugned judgement

needs no interference.

Response of the learned counsel for the appellant

18. Learned counsel appearing for the appellant, in

response, has submitted that simply because the case relates

to rape and murder of a child, it does not come under the

category of rarest of rare cases.

19. Learned counsel for the appellant, in support of his

contention, has
placed reliance upon
the decisions of the

Supreme Court in Sebastian Vs. State of Kerela, reported in

(2010) 1 SCC 58, Ram Deo Prasad Vs. State of Bihar,

reported in (
2013) 7 SCC 725, Tattu Lodhi Vs. State of

M.P.
, reported in (2016) 9 SCC 675, and in all these cases,

the child aged between 2 to 7 years were murdered after

committing rape upon them but the Hon'ble Supreme Court,

in the facts of these cases, held that they do not come within

the category of rarest of rare cases, and the death sentence

awarded by the Trial Court, and confirmed by the High Court,

were commuted to life imprisonment.
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20. Learned counsel has also
placed reliance upon
the

decision of
Rameshbhai Chandubhai Rathod (2) Vs. State of

Gujarat
, reported in (2011) 2 SCC 764, which also related to

rape and murder of a child by the guard of the building. The

Hon'ble Supreme Court laid down the law that it was

obligatory upon the Trial Court to have given the finding as to

a possible rehabilitation and reformation and the possibility

that the accused could still be a useful member of the society,

in case, he was given a chance to do so, and in absence of

such finding, the death sentence awarded by the Trial Court

and confirmed by the High Court, was commuted to the

sentence for whole life, but subject to any remission or

commutation of sentence by the State Government for good

and social reasons.

21. Placing reliance on these decisions, learned counsel

submitted that the present case also, does not come within the

purview of rarest of rare cases, and it is a fit case in which the

death sentence passed by the Trial Court below be set aside

for the offence under
Section 302
of the Indian Penal Code.

22. It has also been submitted that the Trial Court has not

given any finding as to a possible rehabilitation and

reformation of the accused/appellant and in absence of such

finding, the death sentence awarded by the Trial Court cannot

be sustained in the eyes of law.
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Analysis

23. We have heard learned counsel for the parties and

appreciated their arguments.

24. The issues which require consideration based upon the

argument advanced on behalf of the parties are -

(i) whether prosecution has been able to prove charges

levelled against accused person/appellant beyond all

reasonable doubt or not

(ii) Whether the case in hand comes under the purview of

rarest of rare cases?

(iii) Whether there is no alternative but to impose death

sentence in the facts and circumstances of the case?

25. Since all the issues are interlinked and, as such, all are

being taken up together for its consideration. But, before

considering the same, background of the initiation of the case

right from the day of institution of F.I.R. and evidence led on

behalf of the prosecution and the statement recorded under

Section 313
Cr.P.C. need to be referred herein :-

The case of the prosecution is that on 24.12.2022 at

3.00 O'clock the informant alongwith her younger daughter

(victim/deceased aged about 5 years) visited towards roof of

Anganbari for getting the paddy crop parched.

In the meanwhile, her daughter rushed out from there

and started playing with other children. Accused Indar Oraon

aged about 25 years visited there and offered 5 rupees to each
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child and on the other hand her daughter was offered 50

rupees by the accused Indar Oraon.

Accused Indar Oraon wandered alongwith her daughter.

At 4.35 O'clock when she returned home, her daughter was

found to be missing. She inquired whereabout of her daughter

from Indar Oraon accused.

She on suspicion apprehended accused but accused

Indar Oraon strove hard to stifle her in the court yard of

Fuldeo.

In the meanwhile, Sukhmaniya Oraon and Heeramuni

Oraon rushed there and informed her that her daughter was

lying dead. Then Indar Oraon started fleeing from the spot but

he was apprehended by the people who divulged that he

attempted to ravish the victim/deceased behind the house of

Tewasi Oraon during which victim/deceased squealed and in

the said course he stifled her neck causing her death.

It has been alleged that Indar Oraon killed the

victim/deceased when he attempted to ravish her. It has been

also alleged that Indar Oraon was having criminal history of

killing her grand-mother and in this connection earlier a case

was instituted in Bagru Police Station. Thereafter the matter

was reported to the Bagru Police Station for institution of

F.I.R.

26. On the basis of the written report of informant, this case

was instituted for the offences
u/s 302
,
376(2)(f)
of I.P.C. and
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Section 6
POCSO Act and accordingly, the cognizance of the

offences was taken against accused/appellant Indar Oraon

charges were framed for the offences U/s 302, 376(2)(f)
IPC

and
Section 6
POCSO Act and accordingly trial procedded.

27. In course of trial, the prosecution has examined

altogether 17 witnesses. Their depositions are being referred

herein :-

P.W. 1 is Mehrani Orain. She deposed that occurrence

took place seven months ago on Saturday. It was 5.30 PM. At

that time, she was bringing mud to her house from the field.

In the meanwhile, she noticed that Indar Oraon dragged the

victim inside the bathroom and bolted the bathroom. After

sometime he rushed out from bathroom with having child

(victim/deceased) in his hand and laid the said child beneath

flowering plant. He also shrouded the said child by sack and

eloped from the spot. Then she screamed. Villagers gathered

there and it was traced out that the said child was dead.

Villagers apprehended Indar Oraon. Prior to the alleged

occurrence Indar Oraon had killed her grand-mother. She

identified the accused Indar Oraon present in the court room

through Video Conferencing.

In cross-examination, at paragraph-5 she has stated

that when she was bringing mud at her house then she

noticed that the accused was loitering with deceased/victim.
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She did not notice as to what was done with the

victim/deceased inside the bathroom.

P.W. 2 is Sukhmaniya Oraon. She deposed that alleged

occurrence took place 6-7 months ago. At 4.00 PM Indar

Oraon was seen loitering with the victim/deceased. Thereafter

she heard the screaming sound of Mehrani (PW 1) and noticed

that the said victim child was lying dead beneath the plant of

Marigold. Indar Oraon had killed her. Police rushed there and

seized rice sack and small piece of cement plaster from the

alleged place of occurrence. Seizure list was prepared upon

which she provided her thumb impression. She identified the

accused Indar Oraon present in the court room through Video

Conferencing.

During cross-examination she asserted that she has not

witnessed the alleged occurrence.

P.W. 3 is Rajmuni Oraon. She deposed that alleged

occurrence took place on 24.12.2022. In the evening when she

rushed to bathroom to wash her legs then she noticed that the

informant's daughter (victim/deceased) was lying dead there.

Thereafter she raised alarm. The dead body was lying

shrouded by sack beneath marigold plant situated outside the

alleged said bathroom. On hulla Hiramuni and Sukhmaniya

rushed there who informed the informant regarding the said

matter. Police also rushed on the spot. Informant inquired the

matter from the Indar then he started to elope. Sudhir and
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Bablu apprehended him. Police seized bloodstained rice sack

and cement plaster. Seizure list was prepared which bears her

signature. She proved her signature thereon as Ext. P-1. She

identified the accused Indar Oraon present in the court room

through Video Conferencing.

During cross-examination she asserted that she noticed

the dead body of child lying there. The dead body was

shrouded with sack.

P.W. 4 is Mrs. X (victim's mother-cum-informant).

She deposed that occurrence took place on 24.12.2022. Her

daughter was playing with her friends. She was indulged in

some cultivation work and when she returned home at 4.30

PM, her daughter was found to be missing. Then she inquired

the whereabout of her daughter from her daughter's friends.

They divulged to her that Indar Oraon provided them 20

rupees and he also provided 50 rupees to the deceased/victim.

They also narrated to her that they rushed towards shop for

biscuit and chocolate while Indar was loitering with the

deceased/victim. Frantic search was made by her then she

rushed towards chowk where she came across Indar Oraon

who was eating chowmin there. When she inquired the matter

from Indar then Indar Oraon started trembling and the

chowmin plate fell down on ground. Sukhmaniya and

Hiramani visited there who unfolded to her that her daughter

was lying behind the bathroom of Dewasi Oraon. Indar Oraon
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strove hard to elope from there but Sudhir Oraon and Bablu

Oraon apprehended Indar after chase who confessed before

the villagers that he stifled the deceased/victim after

committing rape upon her in the bathroom of Dewasi Oraon.

Police visited there. There was scratch mark over the cheek of

deceased/victim. There was strangulation mark over the neck

of the deceased/victim. Deceased/victim was of five years and

two months at the time of alleged occurrence. Blood also

exuded from the private part of deceased/victim. Then she

instituted this case. She proved the said written report as Ext.

P-2. Postmortem was done at RIMS Ranchi. Accused had also

earlier committed the murder of his grand-mother. She

identified the accused Indar Oraon present in the court room

through Video Conferencing.

During cross-examination, at paragraph 16, she has

stated that she did not notice Indar enticing her daughter

away. Children playing along with her daughter narrated to

her that Indar caused them to visit the shop and, in the

meanwhile, he was seen to be loitering with her daughter.

During para no. 17 of cross-examination, she asserted that

she did not notice accused offering money to the children.

P.W. 5 is Bipasa Oraon. This witness is aged about 8

years. She deposed that she was the student of class IV and

the alleged occurrence took place seven months ago. She had

returned from her school at 3.00 PM. Thereafter she, Priti,
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Khushboo and deceased/victim were playing in court yard.

Indar rushed on the spot and he provided 20 rupees to them.

He also provided 50 rupees to the deceased/victim. He also

caused her and her friends to go outside to have some

refreshment. He clasped the deceased/victim due to which

deceased/victim could not accompany her. Thereafter she

rushed to the shop to have chocolate and biscuit. When she

returned from the shop then deceased/victim and accused

Indar were not present there. When they were going home

then the mother of deceased/victim asked whereabout of her

daughter then she narrated that Indar was loitering with her.

One lady visited towards her washroom then she noticed the

dead body of deceased/victim was lying there shrouded with

sack. She noticed that blood percolated from her mouth and

50 rupees note was lying in her hand. She came to have learnt

that Indar slayed her. She identified the accused Indar Oraon

present in the court room through Video Conferencing.

During cross-examination, she has stated at paragraph

11 that she took 20 rupees from Indar and rushed towards

shop. After half an hour she returned from shop. In para no.

14 she has also stated that when she was going to the shop

then deceased was along with Indar.

P.W. 6 is Khushboo Kumari. This witness is aged

about 11 years old. She deposed that she was the student of

class IV and the alleged occurrence took place seven months
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ago. She had returned from her school at 3.00 PM. Thereafter

she, Priti, Bipasa and deceased/victim were playing in court

yard. Indar rushed on the spot and he provided 20 rupees to

them. He also provided 50 rupees to the deceased/victim. He

also caused her and her friends to go outside to have some

sweets. He asked deceased/victim to stay with him and let her

friends to visit the shop. Thereafter she along with her friends

(except deceased/victim) rushed to the shop. When she along

with her friends returned from the shop then they found

deceased/victim and accused Indar missing from the said

court yard. She narrated to the deceased's mother about

loitering of deceased/victim with accused Indar. She came to

have learnt that Indar slayed deceased/victim in the bathroom

covering her dead body behind the bathroom by cement sack.

She identified the accused Indar Oraon present in the court

room through Video Conferencing.

In her cross-examination, she has stated at paragraph

13 that Indar on the alleged date of occurrence offered money

to her.

P.W. 7 is Bablu Oraon. He deposed that occurrence

took place on 24.12.2022. During that time, he was at his

house then he heard some hulla. He rushed out and noticed

the over crowd-ness near the Areya Chowmin Shop. Indar

Oraon strove hard to elope from there but on the hulla of

villagers he apprehended Indar Oraon. Villagers also thronged
2026:JHHC:140-DB

there. Indar Oraon narrated to them that he stifled the

deceased/victim after committing rape upon her and also

unravelled to them that he shrouded the body of victim by

sack near flower plant situated at the bathroom of Tewasi

Oraon. On this disclosure he along with villagers rushed on

the spot and found the dead body of victim lying there. He

identified the accused Indar Oraon present in the court room

through Video Conferencing.

In his cross-examination, he has stated at paragraph 5

that he had not witnessed the alleged occurrence rather he

rushed to the spot after the completion of alleged occurrence.

Indar was apprehended by him and Sudhir. Villagers also

thronged there. The language used by the accused in course of

disclosure was Sadri. No material contradictions could be

extracted by the defence.

P.W. 8 is Sudhir Oraon. He deposed that occurrence

took place on 24.12.2022. He heard some hulla emanating

from Areya Chowk. He rushed towards there. People crowded

at the chowmin shop. He noticed that informant was asking

whereabout of her daughter from Indar Oraon. Indar Oraon

was puzzled and chowmin plate fell down from his hand. In

the meanwhile Hiramani and Sukhmaniya visited there, who

narrated to the informant that her daughter was found to be

dead near the bathroom of Tewasi Oraon. Indar Oraon strove

hard to elope from there. Then he and Bablu Oraon
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apprehended Indar Oraon after chase. Indar Oraon unravelled

to them that he stifled the deceased/victim after committing

rape upon her and also disclosed to them that he shrouded

the body of victim by sack near flower plant situated at the

bathroom of Tewasi Oraon. On this disclosure he along with

villagers rushed on the spot and found the dead body of victim

lying there. He also noticed nail and hand impression over the

neck of deceased/victim. He identified the accused Indar

Oraon present in the court room through Video Conferencing.

During cross-examination he has deposed that he has

not witnessed the alleged occurrence. He and Bablu Oraon

apprehended the accused Indar Oraon.

P.W. 9 is Priti Oraon. This witness is aged about 06

years. She deposed that she was the student of class II and

asserted that on the alleged date of occurrence she along with

Khushboo, Bipasa and deceased/victim was playing in court

yard. Indar rushed on the spot and he provided 20 rupees to

them. He also provided 50 rupees to the deceased/victim. He

also caused her and her friends to go outside to have biscuit.

He ushered deceased/victim along with him. Informant asked

whereabout of her daughter then she narrated to her that the

deceased/victim was with Indar. Indar took the

deceased/victim towards the bathroom of Gabbar Oraon.

Indar slayed the victim and concealed her body behind
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bathroom. She identified the accused Indar Oraon present in

the court room.

In her cross-examination, she has deposed that she was

given 20 rupees and she rushed to the shop to have some

biscuit. Her friend (deceased/victim) was along with Indar at

that time. They returned back after having biscuit then she

noticed that deceased/victim was not present there.

P.W. 10 is Sunil Oraon. He deposed that occurrence

took place on 24.12.2022. In the evening the deceased/victim

was found to be traceless to whom his sister-in-law was

searching. After some time, he heard some hulla. He rushed

there and noticed that the dead body of deceased/victim was

lying beneath the marigold plant situated near the bathroom

of Tewasi Oraon and the same was draped by sack. Indar

Oraon killed the deceased/victim. He along with other

apprehended Indar Oraon and consigned him to the Police. In

this matter a Panchayati was also held in the village. He also

proved his signature present over the resolution of the

Panchayat as Ext. P-3. He identified the accused Indar Oraon

present in the court room.

At paragraph 16 of cross-examination, he asserted that

he has not noticed accused enticing away the

deceased/victim.

P.W. 11 is Biyas Sahu. He deposed that occurrence

took place on 24.12.2022. At that time, he was at Jogiya
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Chowk. He heard hulla and noticed that informant was asking

whereabout of her daughter from Indar. In the meanwhile,

Hiramani and Sukhmaniya visited there, who narrated to the

informant that her daughter was found to be dead near the

bathroom of Tewasi Oraon. The matter was inquired from

Indar Oraon then Indar Oraon unravelled to them that he

stifled the deceased/victim after committing rape upon her

and also disclosed to them that he shrouded the body of victim

by sack near marigold flower. On this disclosure he rushed on

the spot and found the dead body of victim lying there. In this

matter a Panchayati was also held in the village. He also

proved his signature present over the resolution of the

Panchayat as Ext. P-4. He identified the accused Indar Oraon

present in the court room.

During cross-examination he has deposed that he has

not witnessed the alleged occurrence.

P.W. 12 is Sulendra Sahu. He deposed that occurrence

took place on 24.12.2022. It was 5.00 O'clock in evening. He

heard some hulla and rushed out from his house and visited

towards chowmin shop at Jogiya Chowk. Accused Indar was

taking chowmin. In the meanwhile, informant asked

whereabout of her daughter from Indar. The chowmin plate fell

down on the ground from the hands of Indar. In the

meanwhile, Sukhmania and another lady visited there, who

narrated to her that her daughter was lying dead near the
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bathroom of Tewasi. In the meanwhile, accused strove hard to

elope from there but he was apprehended by Sudhir and

Bablu Oraon. Villagers also thronged there. Indar, on being

inquired, unfolded that he stifled the deceased/victim after

committing rape upon her and also disclosed to them that he

shrouded the body of victim by sack near marigold flower. On

this disclosure he rushed on the spot and found the dead body

of victim lying there. He identified the accused Indar Oraon

present in the court room.

During cross-examination, at paragraph 5 he has

deposed that he has not witnessed the alleged occurrence of

Murder and Rape of the deceased.

P.W. 13 - Dr. Anand Kumar. He conducted postmortem

examination alongwith Dr. Ajay Kumar Bhagat on the dead

body of victim on 25.12.2022 and as per postmortem report

following observations were noticed by the P.W. 13 which are

as follows:-

(i) The body was of average built.

(ii) Rigor mortise was present in eye lids, muscles of

face, lower jaw, neck, upper limbs, fingers, muscles of

chest and abdomen, lower limbs and toes. Abdomen

was slightly distended.

(iii) Nails were cyanosed. Face was deeply congested.

Facial petechial haemorrhages were present. Scleral

haemorrhages and multiple petechial haemorrhages
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were present in the bulbar as well as palpebral

conjunctiva of both eyes. Froth was present at nostrils.

Face and cloths were stained with dry blood. Inner

thighs, vulva and perianal areas were also stained with

dry blood.

Abrasions (bright red in colour/fresh)

(i) Multiple abrasions, 16 in number, varying in

shape from being linear, semilunar and curvilinear,

ranging in size from 0.5 cm x 0.25 cm to 4cm x 1 cm

over middle part of anterior aspect of neck.

(ii) 2cm x 2cm over middle part of left cheek.

(iii) 2cm x 1cm over left side of chin.

(iv) 1.5cm x 1cm over anteromedial aspect of left

elbow.

Bruises (reddish in colour/fresh)

(i) Multiple discoid bruises of size 1cm to 2cm, with

several larger areas of confluent bruising over

middle part of anterior aspect of neck

(ii) 5cm x 2cm over lower part of right cheek and

adjacent chin

(iii) 2cm x 1.5cm over anterior aspect of upper part of

neck.

(iv) Multiple discoid bruises of size 1cm to 2cm over

inner side of thighs
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Internal

(i) Diffuse areas of bruise on the inner surface of

both lips.

(ii) Diffuse contusion of subcutaneous tissues of

neck, platysma, sternocleidomastoid, sternohyoid

and omohyoid muscles of neck and thyroid

capsules. These were torn at places with

extravasation and infiltration of blood and blood

clots at the site of injuries.

(iii) Fracture of left greater horn of hyoid bone with

extravasation of blood in and around the margins

of fracture.

(iv) Mucosal hemorrhages in the interior of larynx.

(v) Hematoma measuring 2.5cm x 0.5cm present over

posterior surface of trachea.

(vi) Diffuse contusion of anterior and middle scalene

muscles of neck with extravasation and

infiltration of blood and blood clots in the muscles

tissues.

(vii) Multiple subpleural and epicardial petechial

hemorrhages.

(viii) Diffuse contusion of soft tissue of vulval labia,

vaginal introitus, perianal and anus, that is over

dilated.
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(ix) Circumferential tear of hymen at multiple places

and laceration of posterior fourchette, with

presence of blood and blood clots in the vaginal

introitus.

(x) Diffuse contusion of uterus with presence of blood

and blood clots in the uterine cavity.

(xi) Laceration of margins of anus, with presence of

longitudinal tear extending from right anal margin

to the right lateral wall of anal canal, with

presence of blood and blood clots in the anal

canal and perianal areas.

(xii) There was evidence of vital reaction at the site of

injuries

Opinion

(i) The above noted injuries were antemortem in

nature caused by hard and blunt object(s).

(ii) Death was due to asphyxia as a result of manual

strangulation.

(iii) Time elapse since death was 12 hours to 36 hours

from the time of postmortem examination.

(iv) The deceased had been sexually assaulted by hard

and blunt object(s), with evidence of forceful

vaginal and anal penetration.
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(v) The viscera had been kept preserved. The I.O. was

directed to collect and submit the preserved

viscera to SFSL for chemical analysis

P.W. 14 is Dr. Ajay Kumar Bhagat. He conducted

postmortem examination alongwith Dr. Anand Kumar (PW 13)

on the dead body of victim on 25.12.2022 and proved his

signature and seal as Ext. P-6 on the same postmortem report

of victim.

P.W. 15 is Kiran Pandit. She deposed that on

24.12.2022 he was posted as Officer-in-charge of Mahila

Police Station, Lohardaga. On that day, an information of

murder and ravishment of a child was received then she

visited Areya village under Bagru Police Station and prepared

inquest report. She proved carbon copy of inquest report as

Ext. P-8. It also bears the signature and thumb impression of

witnesses namely Tara Oraon and Sukhmaniya Oraon (P.W.2).

During cross examination she has deposed that there is

no depiction of recovery of dead body from the vicinity of the

house of Tewasi Oraon in inquest report. She did not record

the statement of witnesses.

P.W. 16 is Vishwajit Kumar Singh, who is the I.O. of

this case. He has deposed that on 24.12.2022 he received an

information on 17.15 Hours of a murder of a child at village

Areya within Bagru cemented plaster-floor. Blood stained rice

sack was also recovered Police Station. On this information he
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along with other Police Officials departed to the village Areya

for the verification. He was also accompanied by then Mahila

Police Station Officer-in-charge S.I. Kiran Pandit. Thereafter

inquest report was prepared and the dead body was sent to

the Sadar Hospital for postmortem. But postmortem could not

be conducted at Sadar Hospital thereafter the dead body was

sent to RIMS, Ranchi. He also collected the garments worn by

the deceased in sealed condition provided by the doctors

conducting postmortem. Thereafter on the written report of

the informant, he registered this case as Bagru P.S. case no.

33/2022 and started investigation. He proved endorsement

over written report as Ext. P-9. He also proved Formal FIR as

Ext. P-10. He also recorded the re-statement of the informant

and recorded the statements of Rajmuni Oraon, Sukhmaniya

Oraon, Mehrani Oraon, Bablu Oraon, Sudhir Oraon, Sunil

Oraon, Bipasa Oraon, Khushboo Kumari, Priti Kumari, Biyas

Sahu, Sulendra Sahu in course of investigation. He also

deposed whatever he did during investigation i.e. recording of

statement of witnesses
u/s 161
Cr.P.C. affirming the place of

occurrence etc. The alleged place of occurrence is the secluded

place nearby Marigold Plant situated near the bathroom of

Tewasi Oraon at village Areya, Bagru. Blood stained mark was

traced out over the from the alleged place of occurrence. He

seized piece of Blood stained cemented plastered-floor and

prepared seizure list. He proved the said seizure list as Ext. P-
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11. He also procured the criminal history of accused and

detected that the accused Indar Oraon was also an accused in

Bagru P.
S. 11
/2021 with having indictment of killing his

grand-mother. He also procured postmortem report. He also

gleaned vaginal swab of deceased, nail clipping and dried

blood sample in sealed condition. Thereafter he was

transferred on 03.02.2023.

During cross examination he has deposed that accused

was consigned by villagers into Police custody nearby the

alleged place of occurrence. The alleged place of occurrence is

the area adjacent to the bathroom of the house of Tewasi Oraon

situated in village Areya. The dead body of the deceased was

found 10 feet away from the house of Sumit Oraon. Para no.

29 of cross-examination of PW 16 stated that there was no

ocular witness of alleged occurrence. He got the seized

material sealed at the alleged place of occurrence.

P.W. 17 is Pankaj Kumar Sharma. On 03.02.2023 he

was posted as Officer-in-charge of Bagru Police Station and

took the charge of remaining investigation of Bagru P.S. case

no. 33/2022. He sent seized exhibit materials and blood

sample of accused to SFSL, Ranchi for examination. He also

recorded the statement of S.I. Kiran Pandit. Thereafter he

submitted charge-sheet no. 07/2023 dated 22.02.2023

against accused Indar Oraon.
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During cross examination he has deposed that the

seized materials were in sealed condition. He did not put any

signature over the sealed materials.

28. The learned trial court has accepted the version of the

prosecution and convicted the appellants under Section

Sections 302
of the Indian Penal Code and
Section 6
of the

POCSO Act and sentenced him to the capital punishment of

death, for the offence under
Section 302
of the Indian Penal

Code, directing him to be hanged by neck till his death. He is

also sentenced to undergo R.I. for life for the offence under

Section 6
of the POCSO Act, which is the subject matter of the

present appeal.

29. Admittedly in this case as per the version of I.O. (PW

16), no ocular witness was traced out in course of

investigation to vindicate the alleged occurrence of ravishment

and murder of the deceased/victim by the hands of accused

Indar Oraon. In such situation the prosecution case rests

upon circumstantial evidence.

30. Thus, before venturing to the merit of the case it would

be apt to discuss herein the settled proposition of law on the

issue of circumstantial evidence based up the last seen theory.

31. The Hon'ble Apex Court in the year 1952, in the

judgment rendered in Hanumant Son of Govind Nargundkar

vs. State of Madhya Pradesh [AIR 1952 SC 343] has laid

down the parameters under which, the case of circumstantial
2026:JHHC:140-DB

evidence is to be evaluated, which suggests that: "It is well to

remember that in cases where the evidence is of a

circumstantial nature, the circumstances from which the

conclusion of guilt is to be drawn should in the first instance

be fully established, and all the facts so established should be

consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every

hypothesis but the one proposed to be proved. In other words,

there must be a chain of evidence so far complete as not to

leave any reasonable ground for a conclusion consistent with

the innocence of the accused and it must be such as to show

that within all human probability the act must have been done

by the accused. ......"

32. The judgment referred in Hanumant (supra) has been

consistently followed by Hon'ble Apex Court in the judgment

rendered in Tufail (Alias) Simmi Vs. State of Uttar Pradesh

[(1969) 3 SCC 198];
Ram Gopal Vs. State of

Maharashtra
[(
1972) 4 SCC 625] and Sharad Birdhichand

Sarda Vs. State of Maharashtra
[(1984) 4 SCC 116 and also

in Musheer Khan alias
Badshah Khan & Anr. Vs. State of

Madhya Pradesh
[(2010) 2 SCC 748.

33. The Hon'ble Apex Court in
Musheer Khan
(Supra) while

discussing the nature of circumstantial evidence and the
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burden of proof of prosecution has held as under paragraph

nos. 39 to 46 as under:

"39. In a case of circumstantial evidence, one must look
for complete chain of circumstances and not on snapped
and scattered links which do not make a complete
sequence. This Court finds that this case is entirely
based on circumstantial evidence. While appreciating
circumstantial evidence, the Court must adopt a cautious
approach as circumstantial evidence is "inferential
evidence" and proof in such a case is derivable by
inference from circumstances.

40.Chief Justice Fletcher Moulton once observed that
"proof does not mean rigid mathematical formula" since
"that is impossible". However, proof must mean such
evidence as would induce a reasonable man to come to a
definite conclusion. Circumstantial evidence, on the other
hand, has been compared by Lord Coleridge "like a
gossamer thread, light and as unsubstantial as the air
itself and may vanish with the merest of touches". The
learned Judge also observed that such evidence may be
strong in parts but it may also leave great gaps and rents
through which the accused may escape. Therefore,
certain rules have been judicially evolved for appreciation
of circumstantial evidence.

41. To my mind, the first rule is that the facts alleged as
the basis of any legal inference from circumstantial
evidence must be clearly proved beyond any reasonable
doubt. If conviction rests solely on circumstantial
evidence, it must create a network from which there is no
escape for the accused. The facts evolving out of such
circumstantial evidence must be such as not to admit of
any inference except that of guilt of the accused.
(See
Raghav Prapanna Tripathi v. State of U.P.
[AIR 1963
SC 74 : (1963) 1 Cri LJ 70] )

42. The second principle is that all the links in the chain
of evidence must be proved beyond reasonable doubt and
they must exclude the evidence of guilt of any other
person than the accused. (See State of U.P. v. Dr.
2026:JHHC:140-DB

Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC
(Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para 20.)

43. While appreciating circumstantial evidence, we must
remember the principle laid down in
Ashraf Ali v. King
Emperor
[21 CWN 1152 : 43 IC 241] (IC at para 14) that
when in a criminal case there is conflict between
presumption of innocence and any other presumption,
the former must prevail.

44. The next principle is that in order to justify the
inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and are
incapable of explanation upon any other reasonable
hypothesis except his guilt.

45. When a murder charge is to be proved solely on
circumstantial evidence, as in this case, presumption of
innocence of the accused must have a dominant
role.
In
Nibaran Chandra Roy v. King Emperor
[11 CWN
1085] it was held that the fact that an accused person
was found with a gun in his hand immediately after a
gun was fired and a man was killed on the spot from
which the gun was fired may be strong circumstantial
evidence against the accused, but it is an error of law to
hold that the burden of proving innocence lies upon the
accused under such circumstances. It seems, therefore,
to follow that whatever force a presumption arising
under
Section 106
of the Evidence Act may have in civil
or in less serious criminal cases, in a trial for murder it is
extremely weak in comparison with the dominant
presumption of innocence.

46. The same principles have been followed by the
Constitution Bench of this Court in Govinda Reddy v.

State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137]
where the learned Judges quoted the principles
laid down
in
Hanumant Govind Nargundkar v. State of M.P. [(1952)
2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio
in Govind [(1952) 2 SCC 71 : AIR 1952 SC 343 :1953 Cri
LJ 129] quoted in AIR para 5, p. 30 of the Report in
Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are:
2026:JHHC:140-DB

"5. ... „10. ... in cases where the evidence is of a
circumstantial nature, the circumstances [which lead to
the conclusion of guilt should be in the first instance]
fully established, and all the facts so established should
be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such
as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence
so far complete as not to leave any reasonable ground for
a conclusion consistent with the innocence of the
accused and it must be [shown] that within all human
probability the act must have been [committed] by the
accused.‟ [As observed in Hanumant Govind Nargundkar
v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at
pp. 345-46, para 10.]
" The same principle has also been
followed by this Court in
Mohan Lal Pangasa v. State of
U.P.
[(1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974
SC 1144] "

34. Thus, it is evident that for proving the charge on the

basis of circumstantial evidence, it would be necessary that

evidence so available must induce a reasonable man to come

to a definite conclusion of proving of guilt; meaning thereby

there must be a chain of evidence so far it is complete as not

to leave any reasonable ground for a conclusion consistent

with the innocence of the accused and it must be such as to

show that within all human probability the act must have

been done by the accused.

35. There is no dispute regarding the settled position of law

that in the case of circumstantial evidence, the chain is to be

complete then only there will be conviction of the concerned

accused person but, the circumstances should be of a
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conclusive nature and tendency and they should be such as to

exclude every hypothesis but the one proposed to be proved.

In other words, there must be a chain of evidence so far

complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and it

must be such as to show that within all human probability

the act must have been done by the accused.

36. The same view has been taken by the Hon'ble Apex

Court in
Bakhshish Singh vs. State of Punjab
, (1971) 3 SCC

182 wherein the Hon'ble Apex Court has observed that the

principle in a case resting on circumstantial evidence is well

settled that the circumstances put forward must be

satisfactorily proved and those circumstances should be

consistent only with the hypothesis of the guilt of the accused.

These circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every

hypothesis but the one proposed to be proved. In other words,

there must be a chain of evidence so far complete as not to

leave any reasonable ground for a conclusion consistent with

the innocence of the accused and it must be such as to show

that within all human probability the act must have been done

by the accused.

37. The Hon'ble Apex Court while laying down such

proposition in the said case has considered the factual aspect

revolving around therein and while considering the fact has
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only found the incriminating evidence against the appellant

was his pointing the place where the dead body of the

deceased had been thrown which the Hon'ble Apex Court has

not considered to be circumstantial evidence though

undoubtedly it raises a strong suspicion against the appellant.

the Hon'ble Apex Court while coming to such conclusion has

observed that even if he was not a party to the murder, the

appellant could have come to know the place where the dead

body of the deceased had been thrown. Hence anyone who saw

those parts could have inferred that the dead body must have

been thrown into the river near about that place. In that

pretext, the law has been laid down at paragraph-9 thereof,

which reads as under:

"9. The law relating to circumstantial evidence has been
stated by this Court in numerous decisions. It is needless
to refer to them as the law on the point is well-settled. In
a case resting on circumstantial evidence, the
circumstances put forward must be satisfactorily proved
and those circumstances should be consistent only with
the hypothesis of the guilt of the accused. Again those
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused."

38. Further, in this regard, reference is required to be made

of the judgments rendered by Hon'ble Apex Court in
Anwar

Ali Vs. State of Himachal Pradesh
(2020) 10 SCC 166 and
2026:
JHHC:140-DB

Mohd. Yonus Ali Tarafdar Vs. State of West Bengal
,

(2020) 3 SCC 747 wherein the Hon'ble Apex Court has laid

down the following propositions to be taken into consideration

in a case based on circumstantial evidences :-

(i) The circumstances from which the conclusion of guilt is

to be drawn should be fully established;

(ii) The circumstances should be of a definite tendency

unerringly pointing towards the guilt of the accused;

(iii) The circumstances taken cumulatively should form a

chain so far complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the accused;

(iv) The circumstances should be consistent only with the

hypothesis regarding the guilt of the accused; and

(v) They must exclude every possible hypothesis except the

one which is sought to be proved.

39. The authoritative judgment in the aforesaid context is

the
Sharad Birdhichand Sarda vs. State of Maharashtra
,

(supra) wherein the Hon'ble Apex Court has held all the above

five principles to be the golden principles which constitute the

"panchsheel" of the proof of a case based on circumstantial

evidence. The Hon'ble Apex Court in the said case as under

paragraph-155, 156, 157, 158 and 159 has been pleased to

hold that if these conditions are fulfilled only then a Court can

use a false explanation or a false defence as an additional link
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to lend an assurance to the court and not otherwise.

Paragraphs-155, 156, 157, 158 and 159 of
the said judgment

read as under:

"155. It may be interesting to note that as regards the
mode of proof in a criminal case depending on
circumstantial evidence, in the absence of a corpus
delicti, the statement of law as to proof of the same was

laid down by
Gresson, J. (and concurred by 3 more
Judges) in King v. Horry [1952 NZLR 111] thus: "Before
he can be convicted, the fact of death should be proved
by such circumstances as render the commission of the
crime morally certain and leave no ground for reasonable
doubt: the circumstantial evidence should be so cogent
and compelling as to convince a jury that upon no
rational hypothesis other than murder can the facts be
accounted for." 156. Lord Goddard slightly modified the
expression "morally certain" by "such circumstances as
render the commission of the crime certain". 157. This
indicates the cardinal principle of criminal jurisprudence
that a case can be said to be proved only when there is
certain and explicit evidence and no person can be
convicted on pure moral conviction.
Horry case [1952
NZLR 111] was approved by this Court in
Anant
Chintaman Lagu v. State of Bombay
[
AIR 1960 SC 500]
Lagu
case [AIR 1960 SC 500] as also the principles
enunciated by this Court in Hanumant case [(1952) 2
SCC 71] have been uniformly and consistently followed in
all later decisions of this Court without any single
exception.

To quote a few cases -- Tufail case [(1969) 3
SCC 198] , Ramgopal case [(1972) 4 SCC 625] ,
Chandrakant Nyalchand Seth v. State of Bombay [
Criminal Appeal No 120 of 1957,],
Dharambir Singh v.
State of Punjab [ Criminal Appeal No
98 of 1958,].

There
are a number of other cases where although Hanumant
case [(1952) 2 SCC] has not been expressly noticed but
the same principles have been expounded and reiterated,
as in
Naseem Ahmed v. Delhi Administration
[(1974) 3
2026:JHHC:140-DB

SCC 668, 670] , Mohan Lal Pangasa v. State of U.P.
[(
1974) 4 SCC 607,] , Shankarlal Gyarasilal Dixit v. State
of Maharashtra
[(1981) 2 SCC 35, 39] and M.G. Agarwal
v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR
405,] -- a five-Judge Bench decision. 158.

It may be
necessary here to notice a very forceful argument
submitted by the Additional Solicitor General relying on a
decision of this Court in
Deonandan Mishra v. State of
Bihar
[AIR 1955 SC 801] to supplement his argument
that if the defence case is false it would constitute an
additional link so as to fortify the prosecution case. With
due respect to the learned Additional Solicitor-General we
are unable to agree with the interpretation given by him
of the aforesaid case, the relevant portion of which may
be extracted thus: "But in a case like this where the
various links as stated above have been satisfactorily
made out and the circumstances point to the appellant
as the probable assailant, with reasonable definiteness
and in proximity to the deceased as regards time and
situation. such absence of explanation or false
explanation would itself be an additional link which
completes the chain."

159. It will be seen that this Court while taking into
account the absence of explanation or a false explanation
did hold that it will amount to be an additional link to
complete the chain but these observations must be read
in the light of what this Court said earlier viz. before a
false explanation can be used as additional link, the
following essential conditions must be satisfied: (1)
various links in the chain of evidence led by the
prosecution have been satisfactorily proved, (2) the said
circumstance points to the guilt of the accused with
reasonable definiteness, and (3) the circumstance is in
proximity to the time and situation."

40. The foremost requirement in the case of circumstantial

evidence is that the chain is to be completed.
In
Padala Veera

Reddy v. State of A.P.
[1989 Supp. (2) SCC 706], the
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Hon'ble Apex Court held that when a case rests upon

circumstantial evidence, the following tests must be satisfied:

"10. ... (1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and firmly
established; (2) those circumstances should be of a
definite tendency unerringly pointing towards guilt of the
accused; (3) the circumstances, taken cumulatively,
should form a chain so complete that there is no escape
from the conclusion that within all human probability the
crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence."

41. Thus, it is evident that for proving the charge on the

basis of circumstantial evidence, it would be necessary that

evidence so available must induce a reasonable man to come

to a definite conclusion of proving of guilt; meaning thereby

there must be a chain of evidence so far it is complete as not

to leave any reasonable ground for a conclusion consistent

with the innocence of the accused and it must be such as to

show that within all human probability the act must have

been done by the accused.

42. A theory of "accused last seen in the company of the

deceased" is a strong circumstance against the accused while

appreciating the circumstantial evidence. In such cases,

unless the accused is able to explain properly the material
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circumstances appearing against him, he can be held guilty

for commission of offence for which he is charged.

43. The Hon'ble Apex Court in the case of
Satpal v. State of

Haryana
, (2018) 6 SCC 610 has observed that when there is

no eyewitness to the occurrence but only circumstances

coupled with the fact of the deceased having been last seen

with the appellant, the Criminal jurisprudence and the

plethora of judicial precedents leave little room for

reconsideration of the basic principles for invocation of the

last seen theory as a facet of circumstantial evidence.

Succinctly stated, it may be a weak kind of evidence by itself

to found conviction upon the same singularly. For ready

reference the relevant paragraph is being quoted as under:

"6. We have considered the respective submissions and
the evidence on record. There is no eyewitness to the
occurrence but only circumstances coupled with the fact
of the deceased having been last seen with the appellant.
Criminal jurisprudence and the plethora of judicial
precedents leave little room for reconsideration of the
basic principles for invocation of the last seen theory as a
facet of circumstantial evidence. Succinctly stated, it may
be a weak kind of evidence by itself to found conviction
upon the same singularly. But when it is coupled with
other circumstances such as the time when the deceased
was last seen with the accused, and the recovery of the
corpse being in very close proximity of time, the accused
owes an explanation under
Section 106
of the Evidence
Act with regard to the circumstances under which death
may have taken place. If the accused offers no
explanation, or furnishes a wrong explanation, absconds,
motive is established, and there is corroborative evidence
available inter alia in the form of recovery or otherwise
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forming a chain of circumstances leading to the only
inference for guilt of the accused, incompatible with any
possible hypothesis of innocence, conviction can be based
on the same. If there be any doubt or break in the link of
chain of circumstances, the benefit of doubt must go to
the accused. Each case will therefore have to be
examined on its own facts for invocation of the doctrine."

44. In the backdrop of the aforesaid discussed settled legal

position this Court is now adverting to the factual aspect of

the instant case in order to find that whether charges against

the present appellant have been proved beyond reasonable

doubt.

45. The evidences adduced by PW 1, PW 2, PW 5, PW 6 and

PW 9 support the case of prosecution in palpable way in

respect of "last seen circumstances ".

46. P.W. 5, PW 6 and PW 9 are the child witnesses who are

said to be playing with the victim/deceased at 3.00 PM on

24.12.2022 at village Areya, Bagru, Lohardaga.

47. P.W. 5 is Bipasa Oraon. This witness is aged about 8

years. She deposed that she is the student of class IV and the

alleged occurrence took place seven months ago. She had

returned from her school at 3.00 PM. Thereafter she, Priti,

Khushboo and deceased/victim were playing in court yard.

Indar rushed on the spot and he provided 20 rupees to them.

He also provided 50 rupees to the deceased/victim. He also

asked her and her friends to go outside to have some

refreshment. He grasped the deceased victim due to which

victim did not accompany her. Thereafter she rushed to the
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shop to have chocolate and biscuit. When she returned from

the shop then deceased and accused Indar were not present

there. When they were going home then the mother of

deceased asked whereabout of her daughter then she narrated

that Indar was loitering with her. One lady visited towards her

washroom then she noticed the dead body of deceased was

lying there shrouded with sack. She noticed that blood

percolated from her mouth and 50 rupees note was lying in

her hand. She came to have learnt that Indar slayed her. In

cross-examination she reiterated that she took 20 rupees from

Indar and rushed towards shop. After half an hour she

returned from shop. She Has also asserted that when she was

going to the shop then deceased/victim was along with Indar.

48. From the aforesaid deposition, no vital contradiction is

originating which could cast doubt over her veracity and her

version that the accused was last seen with victim/deceased

when she was dispelled by the accused Indar Oraon from the

place where she was playing with victim/deceased remained

unassailed.

49. P.W. 6 is Khushboo Kumari. This witness is aged about

11 years. She deposed that she is the student of class IV and

the alleged occurrence took place seven months ago. She had

returned from her school at 3.00 PM. Thereafter she, Priti,

Bipasa and deceased/victim were playing in court yard. Indar

rushed on the spot and he provided 20 rupees to them. He
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also provided 50 rupees to the deceased. He also caused her

and her friends to go outside to have some sweets. He asked

deceased/victim to stay with him and let her friends to visit

the shop. Thereafter she along with her friends (except

deceased) rushed to the shop. When she along with her friends

returned from the shop then they found deceased and accused

Indar missing from the said court yard. She narrated to the

deceased's mother about loitering of deceased with accused

Indar. She came to have learnt that Indar slayed deceased in

the bathroom covering her dead body behind the bathroom by

cement sack. During para no. 13 of cross-examination she

asserted that Indar coaxed her and her friends by providing

money. No vital contradiction is emanating from her cross-

examination which could cast doubt over her veracity and her

version that the accused was last seen with victim/deceased

when she was dispelled by the accused Indar Oraon from the

place where she was playing with victim/deceased remained

intact.

50. Another material witness is PW 9 Priti Oraon who is

said to have been playing with PW 5 and PW 6 and

victim/deceased on the alleged date and time of occurrence.

This witness is aged about 06 years. She has deposed that she

was the student of class II and asserted that on the alleged

date of occurrence she alongwith Khushboo, Bipasa and

deceased/victim was playing in court yard. Indar rushed on
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the spot and he provided 20 rupees to them. He also provided

50 rupees to the deceased. He also caused her and her friends

to go outside to have biscuit. He ushered deceased/victim

along with him. Informant asked whereabout of her daughter

then she narrated to her that the deceased victim was with

Indar. Indar took the deceased/victim towards the bathroom

of Gabbar Oraon. Indar slayed the victim and concealed her

body behind bathroom. During cross-examination she

asserted that she was provided 20 rupees and she rushed to

the shop to have some biscuit. Her friend (deceased/victim)

was along with Indar at that time. They returned back after

having biscuit then she noticed that deceased victim was not

present there. No vital contradiction is emanating from her

cross-examination which could cast doubt over her veracity

and her version that the accused was last seen with

victim/deceased when she was dispelled by the accused Indar

Oraon from the place where she was playing with

victim/deceased remained unassailed.

51. Herein the learned counsel for the appellant has raised

the issue that the learned Trial Court did not record proper

satisfaction that P.W. 5,6 and 9 being child witnesses were

competent to understand the facts and circumstances of the

matter.

52. In the aforesaid context it needs to refer herein that a

child of tender age can be allowed to testify if he or she has
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intellectual capacity to understand questions and give rational

answers thereto. A provision has been made in the Indian

Evidence as under
Section 118
of the Indian Evidence Act

wherein it has been provided that the testimony of the tender

witness can be accepted subject to verification of the

intellectual capacity of such witness. For, ready reference the

section 118 is being quoted as under:

118. Who may testify. --All persons shall be competent to testify unless
the Court considers that they are prevented from understanding the
questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind.

Explanation.-- A lunatic is not incompetent to testify, unless he is
prevented by his lunacy from understandingthe questions put to him
and giving rational answers to them.

53. Further, the evidence of a child witness is not required

to be rejected per se, but the court as a rule of prudence

considers such evidence with close scrutiny and only on being

convinced about the quality thereof and reliability can record

conviction, based thereon. Reference in this regard may be

taken from the judgment rendered by the Hon'ble Apex Court

in the case of Virendra alias Buddhu & Anr. Vs. State of

Uttat Pradesh [(2008) 16 582], relevant paragraph of which

is quoted as under:

19. A child of tender age can be allowed to testify if he or
she has intellectual capacity to understand questions
and give rational answers thereto. The evidence of a child
witness is not required to be rejected per se, but the
court as a rule of prudence considers such evidence with
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close scrutiny and only on being convinced about the
quality thereof and reliability can record conviction,
based thereon.

20.
In
Dattu Ramrao Sakhare v. State of
Maharashtra
[(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it
was held as follows : (SCC p. 343, para 5) "5. ... A child
witness if found competent to depose to the facts and
reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath the
evidence of a child witness can be considered
under
Section 118
of the Evidence Act provided that such
witness is able to understand the questions and able to
give rational answers thereof. The evidence of a child
witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which
the court should bear in mind while assessing the
evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of
being tutored."

21. Subsequently, in Ratansinh Dalsukhbhai Nayak v.

State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7]
wherein one of us (Dr. Arijit Pasayat) was a member the
Bench held that (SCC p. 67, para 7) though "[t]he
decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge
who notices his manners, his apparent possession or lack
of intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation
of an oath."

but "[t]he decision of the trial court may, however, be
disturbed by the higher court if from what is preserved in
the records, it is clear that his conclusion was
erroneous".

The
Bench further held
as under : (Ratansinh case
[(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC p. 67, para 7)
"7. ... This precaution is necessary because child
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witnesses are amenable to tutoring and often live in a
world of make-believe. Though it is an established
principle that child witnesses are dangerous witnesses as
they are pliable and liable to be influenced easily, shaken
and moulded, but it is also an accepted norm that if after
careful scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it, there is
no obstacle in the way of accepting the evidence of a child
witness."

54. The Hon'ble Apex Court further in the case judgment

rendered in the case of
Nivrutti Pandurang Kokate & Ors Vs.

State of Maharashtra
[(2008) 12 SCC 565], wherein at

paragraph 10 it has been held as under:

10. "6. ...
The Evidence Act, 1872
(in short „the
Evidence

Act
‟) does not prescribe any particular age as a

determinative factor to treat a witness to be a competent

one. On the contrary,
Section 118
of the Evidence Act

envisages that all persons shall be competent to testify,

unless the court considers that they are prevented from

understanding the questions put to them or from giving

rational answers to these questions, because of tender

years, extreme old age, disease--whether of mind, or any

other cause of the same kind. A child of tender age can

be allowed to testify if he has intellectual capacity to

understand questions and give rational answers thereto.

This position was concisely stated by Brewer, J. in

Wheeler v. United States [40 L Ed 244 : 159 US 523

(1895)] . The evidence of a child witness is not required to

be rejected per se, but the court as a rule of prudence

considers such evidence with close scrutiny and only on

being convinced about the quality thereof and reliability
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can record conviction, based thereon.

(See
Suryanarayana v. State of Karnataka
[(2001) 9 SCC

129 : 2002 SCC (Cri) 413] .)

55. It is, thus, evident from the consideration made

hereinabove in the context of
Section 118
of the Evidence Act

that all persons shall be competent to testify, unless the Court

considers that they are prevented from understanding the

question put to them or from giving rationale answers to the

questions, because of tender years, extreme old age, disease

whether of mind, or any other cause of the same kind. It

further appears that a child of tender age can be allowed to

testify if he has intellectual capacity to understand questions

and given rationale thereto. It further appears that the

evidence of a child witness is not required to be rejected per

so, but the court as a rule of prudence considers such

evidence with close scrutiny and only on being convinced

about the quality thereof and reliability can record conviction.

56. In the instant case the evidence adduced by PW 5, PW

6 and PW 9 on the point that the victim/deceased was last

seen with the accused on 24.12.2022 at 3.00 PM and

thereafter she was found dead nearby the washroom of Tewasi

Oraon remained unshaken and these versions of PW 5, PW 6

and PW 9 have been also corroborated by evidences

propounded by PW 1 and PW 2.

57. P.W. 1 is Mehrani Orain. She deposed that occurrence

took place seven months ago on Saturday. It was 5.30 PM. At
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that time, she was bringing mud to her house from the field.

In the meanwhile, she noticed that Indar Oraon dragged the

victim inside the bathroom and bolted the bathroom. After

some time, he rushed out from bathroom with having child

(victim) in his hand and laid the said child beneath flowering

plant. He also shrouded the said child by sack and eloped

from the spot.

58. P.W. 2 is Sukhmaniya Oraon. She deposed that alleged

occurrence took place 6-7 months ago. At 4.00 PM Indar

Oraon was seen loitering with the victim/deceased. Thereafter

she heard the screaming sound of Mehrani (PW 1) and noticed

that the said victim child was lying dead beneath the plant of

Marigold. Indar Oraon had killed her.

59. Thus, from the aforesaid evidences it is established that

the accused Indar Oraon was last seen with victim/deceased

and there after in vey short interval of time the victim was

found to be dead near the bathroom and deceased body was

shrouded with sack.

60. The Inquest Report (Ext. P-8) is the document to reveal

that the dead body of the deceased/victim was recovered by

the Police after preparing inquest report at 17.45 hours on

24.12.2022 and it was also depicted in the Ext. P-8 that the

victim/deceased was strangulated to death after being raped.

Moreover prosecution witnesses PW 1, PW 2, PW 3, PW 4, PW

5, PW 6, PW 7, PW 10 and PW 11 have testified in their
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evidences that the deceased/victim was found to be dead near

the washroom of Tewasi Oraon.

61. PW 13 is Dr. Anand Kumar who conducted postmortem

examination alongwith Dr. Ajay Kumar Bhagat (PW 14) on the

dead body of victim on 25.12.2022 and as per postmortem

report (Ext. P5) the injuries were antemortem in nature caused

by hard and blunt object and death was due to asphyxia as a

result of physical strangulation. Further, it has been opined

that the deceased had been sexually assaulted by hard and

blunt object(s), with evidence of forceful vaginal and anal

penetration.

62. No explanation has been given in the statement of

accused Indar Oraon
u/s 313
Cr.P.C. as to when he parted

the company of victim/deceased. Also, no explanation is there

as to what happened inside the bathroom of Tewasi Oraon

with the victim. Accused remained silent when he was

examined
u/s 313
Cr.P.C. and it was a mere denial by the

accused of all the incriminating circumstances which were put

to him
u/s 313
Cr.P.C. The silence on the part of the accused,

in such a matter wherein he is expected to come out with an

explanation, leads to an adverse inference against the

accused.

63. The circumstance of deceased being last seen alive in

the company of the deceased is a vital link in the chain of

other circumstances but on its own strength it is insufficient
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to sustain conviction unless the time-gap between the

deceased being last seen alive with the accused and recovery

of dead body of the deceased is so small that possibility of any

other person being the author of the crime is just about

impossible. Last seen theory is considered to be a weak basis

for conviction. However, when the same is coupled with other

factors such as when the deceased was last seen with the

accused, proximity of time to the recovery of the body of

deceased etc.

64. The accused is bound to give an explanation under

section 106
of the Evidence Act, 1872. If he does not do so, or

furnishes what may be termed as wrong explanation or it a

motive is established-pleading securely to the conviction of the

accused closing out the possibility of any other hypothesis,

then a conviction can be based thereon. This opinion of this

court is fortified from the
ratio
laid down in

Satpal Singh Vs

State of Haryana
(supra) .

65. As per Ext. P-10, the alleged time span of the

occurrence is from 15.00 Hours to 16.35 Hours on

24.12.2022. As per Ext. P-8 the inquest report regarding

recovery of the dead body of victim was prepared by the Police

(PW 15) at 17.45 Hours on 24.12.2022. The time-gap between

deceased being last seen with accused and recovery of dead

body of deceased is small and no plausible explanation as to

how the victim was strangulated to death after being raped
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was adduced by the accused
u/s 313
Cr.P.C. as well as

Section 106
of Evidence Act. Chapter - VII under Part -
III of

the Indian Evidence Act, 1872
deals with "Burden of Proof"

Section 101 provides that when a person is bound to prove the

existence of any fact it is said that the burden of proof lies on

that person. However, there may be a case in which it is not

known to the prosecution how the death of a person has

occurred. Wherever it is found that a fact which is relevant is

within the special knowledge of the accused and such fact

cannot be unearthed by the investigating officer by any

amount of enquiry and investigation by operation of
section
of the Indian Evidence Act the burden would shift upon

the person who has special knowledge of such fact.
Section
Indian Evidence Act incorporates the principle of reverse

burden. Hence adverse inference can be drawn against the

accused
u/s 106
Evidence Act. Fact so established are

incessant and consistent to evince that the act of

strangulation and ravishment of deceased/victim has been

done by the accused Indar Oraon.

66. PW 4 (victim/deceased mother-cum-informant) deposed

that occurrence took place on 24.12.2022. Her daughter was

playing with her friends. She was indulged in some cultivation

work and when she returned home at 4.30 PM, her daughter

was found to be missing. Then she inquired the whereabout of

her daughter from her daughter's friends. They divulged to her
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that Indar Oraon provided them 20 rupees and he also

provided 50 rupees to the deceased victim. They also narrated

to her that they rushed towards shop for biscuit and chocolate

while Indar was loitering with the deceased victim. Frantic

search was made by her then she rushed towards chowk

where she came across Indar Oraon who was eating chowmin

there. When she inquired the matter from Indar then Indar

Oraon started trembling and the chowmin plate fell down on

ground. Sukhmaniya and Hiramani visited there who unfolded

to her that her daughter was lying behind the bathroom of

Dewasi Oraon. Indar Oraon strove hard to elope from there

but Sudhir Oraon and Bablu Oraon apprehended Indar after

chase who confessed before the village that he stifled the

deceased/victim after committing rape upon her in the

bathroom of Dewasi Oraon. Police visited there. There were

scratch mark over the cheek of deceased. There was

strangulation mark over the neck of the deceased. Deceased

was of five years and two months at the time of alleged

occurrence. Blood also exuded from the private part of

deceased victim. No vital contradictions or paradoxical

statement is emanating during her cross-examination which

could cast doubt over her veracity as PW 7, PW 8, PW 10, PW

11 and PW 12 have also countenanced the version of PW 4 in

candid and limpid manner. The version of PW 4 has been

corroborated and invigorated by other prosecution witnesses
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as mentioned above. Moreover stringent documents i.e. Ext. P-

2, Ext. P5, Ext. P-8 also go to vindicate the flawless evidence of

PW 4.

67. PW 7, PW 8, PW 10, PW 11 and PW 12 have asserted in

their evidences that accused Indar Oraon was taking chowmin

at shop situated Jogiya Chowk and in the meanwhile

informant (PW 4) asked accused Indar Oraon regarding

whereabout of her daughter (victim/deceased) then the

chowmin plate slipped down from the hands of the accused

and he strove hard to elope from there but he was

apprehended by PW 7 and PW 8 on the spot. PW 7, PW 8, PW

10, PW 11 and PW 12 are reliable and trustworthy witnesses

because their evidences are devoid of paradoxical and

inconsistent statements. The incessant and flawless evidences

of PW 7, PW 8, PW 10, PW 11 and PW 12 go to evince that the

accused Indar Oraon confessed before them and villagers that

he after committing rape upon the victim/deceased inside the

bathroom of Tewasi Oraon strangulated her to death and also

shrouded her dead body with a sack beneath the Marigold

Flower Plant. The stringent, consistent and corroborative

versions of PW 4, PW 7, PW 8, PW 10, PW 11 and PW 12 go to

depict that the accused Indar Oraon strove hard to elope from

the chowmin shop when he was asked about deceased/victim

and his chowmin plate also slipped down to earth. These

circumstances and the conduct of the accused in front of
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reliable prosecution witnesses are well relevant
u/s 6
and
of

Indian Evidence Act.

68. From the cogent evidences of prosecution, it is well

established that the accused Indar Oraon, on 24.12.2022, who

was familiar to the deceased/victim as being the dweller of the

same village that of informant, enticed away the

deceased/victim towards the bathroom of Tewasi Oraon while

victim/deceased was playing with other children.

69. It is also well established and proved through the

circumstantial chain that accused Indar Oraon caused other

children to have some refreshment and thereafter enticed the

deceased/victim towards secluded place inside the bathroom

of Tewasi Oraon. It has been also proved by cogent

prosecution evidences that the victim/deceased was last seen

with the accused Indar Oraon on 24.12.2022 during evening-

period and accused was also seen covering the body of

deceased beneath the flower plant situated near the bathroom

of Tewasi Oraon. In this case the alleged place of occurrence

was affirmed by the I.O. which is the secluded place nearby

the marigold flower plant situated near bathroom of Tewasi

Oraon. It is also well established that the being salacious

accused Indar Oraon raped the victim/deceased who was

minor and aged about 5 years and was also well acquainted

with the accused. Ext. P8 is a stringent and rattling document

to unfold that the deceased/victim was manually strangulated
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after being raped and antemortem injuries were also found to

be present on her person.

70. The learned counsel for the appellant has contended

that SFSL report negates the involvement of the accused/

appellant in the alleged occurrence.

71. It needs to refer herein that in the case of
Ranjitsing

Brahmajeetsing Sharma vs. State of Maharashtra
, 2005

CrLJ 2533 the Hon'ble Apex Court by referring to the U.S.

Supreme Court decision rendered in the case of R. vs.

Watters, (2000) All.E.R. (D) 1469, has ruled that the DNA

evidence may have a great significance where there is

supporting evidence, dependent of course, on the strength of

that evidence. In every case one has to put the DNA evidence

in the context of the rest of the evidence and decide whether

taken as a whole, it does amount to a prima facie case.

72. Further the DNA evidence is like any other expert

opinion
u/s 45
of Evidence Act and its probative value may

vary from case to case. If DNA evidence is not properly

documented, collected, packaged and preserved, it will not

meet the legal and scientific requirements for admissibility in

a court of law.

73. Herein, it needs to refer herein that Ext. P-7 is the SFSL

report and as per the said report DNA profiling could not be

extracted from the materials seized by the Police in course of

investigation as per seizure list (Ext. P-11). Further Non-
2026:JHHC:140-DB

generation of DNA profiling can't be a ground to negate the

involvement of the accused in the alleged occurrence as Ext.

P-5 (post-mortem report) has substantiated the fact that the

victim was manually strangulated to death after being raped

and further just before the said gruesome act the victim was

seen with the accused/appellant and this fact has been

substantiated by the cogent evidence led by P.W. 5, 6 and 9,

therefore the contention of the learned counsel for the

appellant is not tenable.

74. Further the dead body of the deceased was found

beneath flowering plant shrouded by sack, which clearly

shows that after committing rape and murder, the dead body

was thrown away in order to conceal the dead body, in an

attempt to cause the disappearance of the evidence.

75. The evidences of witnesses, clearly show that the

deceased girl was last seen with the accused, near the

bathroom of Tewasi Oraon and short proximity of time the

dead body of the victim is found and the entire alleged

occurrence has been fully substantiated by the medical

evidence.

76. Thus, on the basis of discussion made hereinabove it is

considered view of this Court that there is no illegality in the

findings of the Trial Court below, in convicting the present

appellants for the offence under
Sections 302
of the Indian

Penal Code and
Section 6
of the POCSO Act.
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77. We have heard learned counsel for both the sides in

detail on the point of sentence.

78. Learned counsel for the State, supporting the death

reference, has placed reliance upon the decisions of the

Hon'ble Apex Court in
Bachan Singh Vs. State of Punjab
,

reported in (1980) 2 SCC 684 and Machi Singh & Ors. Vs.

State of Punjab, reported in (1983) 3 SCC 470, giving the

necessary guidelines for awarding the death sentence, and

submitted that in Machi Singh's case (supra), it has been held

that when the victim of murder is an innocent child who could

not have or has not provided even an excuse, much less a

provocation, for murder, the case comes within the rarest of the

rare category, and it is a fit case for imposing the death

sentence.

79. Learned counsel has further placed reliance upon the

decision of the Hon'ble Apex Court in
Bantu Vs. State of U.P.
,

reported in (2008) 11 SCC 113, which related to the rape and

murder of a child, aged about five years, wherein the Apex

Court held that the case fell within the category of rarest of

rare cases, affirming the death sentence.

80. Similarly, in
Shivaji Vs. State of Maharashtra
,

reported in (2008) 15 SCC 269, which related to rape and

murder of a child aged about nine years, it was held that the

plea that in cases of circumstantial evidence, the death

sentence should not be awarded, is without any logic. This
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case was also found to be falling within the category of rarest

of rare cases, and the death sentence to the accused was

affirmed.

81.
In
Mohd. Mannan Vs. State of Bihar
, reported in

(2011) 5 SCC 317, which related to rape and murder of a

child aged about eight years, again it was held to be falling

within the rarest of rare category, and death sentence was

affirmed by the Supreme Court, re-iterating the guidelines for

imposing death sentence, as follows :-

"24. Further, crime being brutal and heinous itself does not
turn the scale towards the death sentence. When the crime
is committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and
extreme indignation of the community and when collective
conscience of the community is petrified, one has to lean
towards the death sentence. But this is not the end. If these
factors are present the court has to see as to whether the
accused is a menace to the society and would continue to be
so, threatening its peaceful and harmonious coexistence. The
court has to further enquire and believe that the accused
condemned cannot be reformed or rehabilitated and shall
continue with the criminal acts. In this way a balance sheet
is to be prepared while considering the imposition of penalty
of death of aggravating and mitigating circumstances and a
just balance is to be struck. So long the death sentence is
provided in the statute and when collective conscience of the
community is petrified, it is expected that the holders of
judicial power do not stammer dehors their personal opinion
and inflict death penalty. These are the broad guidelines
which this Court has laid down for imposition of the death
penalty."

82.
In
Vasanta Sampat Dupare Vs. State of Maharashtra
,

reported in (2015) 1 SCC 253, which related to rape and
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murder of a child aged about four years, who, after the rape

was committed upon her, was crushed to death by stone, the

Hon'ble Supreme Court affirmed the death sentence, finding

the case to be one under the category of rarest of rare cases.

In this case, the accused-appellant had also filed the Review

Petition in the Supreme Court, which was again dismissed by

the Judgment, reported in (2017) 6 SCC 631.

83. Placing reliance on these decisions, learned counsel for

the State submitted that the case in hand relates to murder of

the victim girl after commission of rape upon her by the

accused and the case comes within the category of rarest of

rare cases, and as such it is a fit case in which the death

sentence awarded to the accused by the Trial Court below be

confirmed, irrespective of his age, family background or lack of

criminal antecedents, which cannot be considered as

mitigating circumstances.

84. On the other hand, learned counsel for the appellant

has submitted that simply because the case relates to rape

and murder of a child, it does not come under the category of

rarest of rare cases.

85. Learned counsel has
placed reliance upon
the decisions

of the Supreme Court in Sebastian Vs. State of Kerela,

reported in (2010) 1 SCC 58, Ram Deo Prasad Vs. State of

Bihar, reported in (
2013) 7 SCC 725, Tattu Lodhi Vs. State

of M.P.
, reported in (2016) 9 SCC 675, and in all these cases,
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the child aged between 2 to 7 years were murdered after

committing rape upon them. The Supreme Court, in the facts

of these cases, held that they do not come within the category

of rarest of rare cases, and the death sentence awarded by the

Trial Court below, and confirmed by the High Court, were

commuted to life imprisonment.

86. Learned counsel has also
placed reliance upon
the

decision of
Rameshbhai Chandubhai Rathod (2) Vs. State

of Gujarat
, reported in (2011) 2 SCC 764, which also related

to rape and murder of a child by the guard of the building. The

Hon'ble Supreme Court laid down the law that it was

obligatory upon the Trial Court to have given the finding as to

a possible rehabilitation and reformation and the possibility

that the accused could still be a useful member of the society,

in case, he was given a chance to do so, and in absence of

such finding, the death sentence awarded by the Trial Court

and confirmed by the High Court, was commuted to the

sentence for whole life, but subject to any remission or

commutation of sentence by the State Government for good

and social reasons.

87. Similar view was taken by the Apex Court in
Amit Vs.

State of U.P
, reported in (2012) 4 SCC 107, which also

related to rape and murder of a three years old child.

In the

said case also, the ratio of
Rameshbhai Chandhubhai

Rathod
's case (supra), was applied by the Supreme Court and
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the death sentence was commuted to the sentence of life in

the same terms.

88. Placing reliance on these decisions, learned counsel for

the accused/appellant submitted that the present case also,

does not come within the purview of rarest of rare cases, and

it is a fit case in which the death sentence passed by the Trial

Court below be set aside for the offence under
Section 302
of

the Indian Penal Code.

89. It is also submitted that the Trial Court has not given

any finding as to a possible rehabilitation and reformation and

the possibility that the accused could still be a useful member

of the society, in case, he is given a chance to do so, and in

absence of such finding, the death sentence awarded by the

Trial Court cannot be sustained in the eyes of law.

90. We cannot loose sight of some landmark Judgements on

the issue of awarding death sentence, rendered by the Hon'ble

Apex Court.
In the case of
Rajendra Pralhadrao Wasnik Vs.

State of Maharashtra
, reported in AIR 2019 SC 1, which

related to rape and murder of a child aged about three years,

and the appellant was found guilty and convicted for the

offences under
Sections 376(2)(f)
,
and
of the Indian

Penal Code, in which, the death sentence was awarded by the

Trial Court for the offence under
Section 302
of the Indian

Penal Code, which was confirmed by the High Court. Criminal

Appeal filed by the appellant also stood dismissed by the
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Supreme Court, as reported in (2012) 4 SCC 37. The review

petitions were then filed by the appellant, which also stood

dismissed by the Supreme Court.

Thereafter, in a completely

different case, the Constitution Bench of the Supreme Court in

Mohd. Arif Vs. Registrar
, Supreme Court of India, reported

in (2014) 9 SCC 737, considered two basic issues in the cases

where death sentence was pronounced by the High Court: (1)

whether the hearing of such cases should be by a Bench of at

least three if not five Judges of the Supreme Court and (2)

whether the hearing of review petitions in death sentence

cases should not be by circulation, but should only be in open

Court. Though the Supreme Court was not persuaded to

accept the submission that the appeal should be heard by five

Judges of the Court, but it decided that in every appeal

pending in the Court in which the death sentence had been

awarded by the High Court, only a Bench of three Judges shall

hear the appeal. As regards the oral hearing of the review

petitions in the open Court, it was held that a limited oral

hearing ought to be given, and it was held that this direction

would also apply where the review petition is already

dismissed, but the death sentence was not executed. This gave

an opportunity of consideration of the matter of the accused

Rajendra Pralhadrao Wasnik again by the Supreme Court. As

regards the said accused, it was found by the Supreme Court

that the High Court as well as the Hon'ble Supreme Court had
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not taken into consideration the probability of reformation,

rehabilitation and social integrity of the appellant into the

society. The Court, however, found that the appellant was

accused in other three similar nature of cases. The Hon'ble

Supreme Court in the backdrop of these facts laid down the

law as follows :-

"75. -------------. It must be appreciated that a sentence of death
should be awarded only in the rarest of rare cases, only if an
alternative option is unquestionably foreclosed and only after full
consideration of all factors keeping in mind that a sentence of
death is irrevocable and irretrievable upon execution. It should
always be remembered that while the crime is important, the
criminal is equally important in so far as the sentencing process
is concerned. In other words, courts must "make assurance
double sure"." (Emphasis supplied).

91. Even in the backdrop of the fact that the accused was

found to be accused in three similar nature of cases, and the

case related to the gruesome rape and murder of a girl child

aged about three years, the Hon'ble Apex Court, laying down

the law that in absence of any consideration about the

probability of reformation, rehabilitation and social re-

integration of the appellant into the society, the death

sentence awarded upon the appellant, could not be

maintained, commuted the death sentence of the accused,

which was earlier affirmed up to the Supreme Court, to the life

imprisonment with direction that the accused should not be

released from the custody for the rest of his normal life.
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92. Again in the case of
Sachin Kumar Singhraha Vs.

State of M.P.
, reported in 2019 SCC On Line SC 363, a

school going girl was subjected to rape, and her school bag

and dead body were recovered at the instance of the accused,

pursuant to his disclosure statement, it was not found to be a

case of such category, where the death sentence was

necessarily to be imposed, and the death sentence imposed

upon the accused was commuted to the sentence of life

imprisonment, with no remission for 25 years. In the facts of

the case, the Hon'ble Apex Court was not convinced that the

probability of reform of the accused was low, in absence of any

criminal antecedent and keeping in mind his overall conduct.

93. Taking cues from the decisions of the Hon'ble Apex

Court in
Rajendra Pralhadrao Wasnik
's case and
Sachin

Kumar Singhraha
's case (supra), we are of the view that the

principles laid down therein, would squarely cover the case of

the appellant in the present case also. The probability of

reformation, rehabilitation and social re-integration of the

appellant, also cannot be ruled out. But at the same time, we

just cannot lose sight of the manner in which the deceased

was murdered after committing rape upon her.

94. In the facts of this case, we are of the considered view,

that though the extreme penalty of death was not warranted in

the facts of this case, but the accused does not deserve any

major leniency in the matter of remission of the sentence. As
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such, the impugned order of sentence, awarding the capital

punishment of death to the appellant, Indar Oraon, for the

offence under
Section 302
of the Indian Penal Code, is hereby,

commuted to the life sentence.

95. In our considered view, this alternative option shall

serve the interest of justice. The sentence passed against the

appellant Indar Oraon for the offence under
Section 6
of the

POCSO Act shall also run concurrently. We also hereby, affirm

the sentence of the appellant Indar Oraon for the offence

under
Section 6
of the POCSO Act.

96. Accordingly, the impugned Judgment of conviction

dated 09.01.2025 and Order of sentence dated 10.01.2025

passed by learned Additional and Sessions Judge-I-cum-

Special Judge (POCSO Act), Lohardaga, in Special POCSO

Case No.09/2023, stand affirmed, with the modification in the

sentence of the appellant Indar Oraon, as aforesaid.

97. Before parting with this Judgment, we find that the

parents of the deceased are the victims of crime in this case

and they are required to be duly compensated under the

'Victim Compensation Scheme' under
Section 357-A
of the

Cr.P.C./Section 396 of the BNSS, 2023.

98. We accordingly, direct the Member Secretary,

Jharkhand State Legal Services Authority, Ranchi, to take up

the matter with the concerned District Legal Services
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Authority, so that these victims of crime may be duly

compensated at an early date.

99. Let a copy of this Judgment be sent to the Member

Secretary, Jharkhand State Legal Services Authority, Ranchi,

for the needful.

100. The aforesaid Criminal Appeal is accordingly, dismissed

with the modification of the sentence of the appellant Indar

Oraon for the offence under
Section 302
of the Indian Penal

Code.

101. The Death Reference is also answered, accordingly.

102. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with a copy of this Judgment.

I agree (Sujit Narayan Prasad, J.)

(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)

Date : 06/01/2026

Birendra / A.F.R.

Uploaded on 06.01.2026.